When “up to no good” is a crime
Friday, March 5th, 2010Here’s the dirty little secret I kept from the world during my 30 years in the newspaper business: I hardly ever read editorials, those expressions of institutional opinion that typically make up in ponderousness what they lack in insight. I remembered the reason for that policy when I saw this editorial from the Greensboro News-Record, a newspaper I rarely read. (Why I came across it is a long and not very interesting tale.)
The editorial offers a full-throated defense of the law, now being reviewed by the U.S. Supreme Court, that makes it possible for people to be criminally prosecuted for depriving the public of “honest services.”
Critics say the measure is vague and overly broad. During oral arguments in December, Justice Antonin Scalia wondered whether it could be used to charge a salaried employee who phones in sick to go to a ball game.
The court shouldn’t get tangled up in trivialities. While it’s possible for prosecutors to apply any law too vigorously, juries can tell the difference between a worker who cheats his employer out of a day’s pay and a corrupt public official or dishonest corporate executive.
… [T]here needs to be a law to catch all the people in power who fail in their duty to provide “honest services free of improper influence or corruption.” The court should not strike this one.
If you need help understanding when a public official or business executive is guilty of failing to provide “honest service,” try this: It’s when anyone behaves in a fashion that you just know is shady. You can’t quite put your finger on it, but something’s fishy. When that happens, that person is de facto guilty of being improperly influenced by others. He or she hasn’t given you honest service.
I’m not exaggerating, and that’s the trouble with this ludicrous law. As Harvey Silverglate, a renowned civil liberties lawyer, explained in this essay, the absurdly vague definition of “honest services” is an invitation to prosecutorial abuse:
If a federal prosecutor felt in his gut that the individual had somehow deprived the voters or the corporation and shareholders of the “honest services” that were, in the prosecutor’s sole discretion, due, the defendant could end up serving a decades-long prison sentence. To my mind, it was rather like prosecuting, convicting and imprisoning a citizen for being “a bad person,” with the government defining badness.
You’d think that a newspaper in a state where flawed prosecutions have recently resulted in an embarrassing number of overturned convictions would be a bit more measured in its zeal to keep this arrow in the government’s quiver.